Avery v. Cunningham

• Decision Date: 09 December 1988
• Docket Number: No. 86-263,86-263
• Parties: Clifford AVERY v. Michael CUNNINGHAM, Warden, New Hampshire State Prison.
• Court: New Hampshire Supreme Court

Page 952

551 A.2d 952

131 N.H. 138

Clifford AVERY v. Michael CUNNINGHAM, Warden, New Hampshire State Prison.

No. 86-263.

Supreme Court of New Hampshire.

Dec. 9, 1988.

Randall and Bownes, Laconia (David H. Bownes, on the brief and orally), for petitioner.

Stephen E. Merrill, Atty. Gen. (T. David Plourde, Asst. Atty. Gen., on the brief, and Andrew Serrell, Asst. Atty. Gen., orally), for State.

THAYER, Justice.

Petitioner was convicted of first degree murder on May 19, 1975, and sentenced to life imprisonment. His subsequent appeal to this court resulted in our affirming his conviction. The petitioner filed a motion for a new trial along with a petition for a writ of habeas corpus in superior court, alleging, inter alia, ineffective assistance of counsel. The Superior Court (Murphy, J.) denied both motions, and for the reasons that follow, we affirm.

This case arises out of the deaths of Lee Ann Greeley and Gary Russell. The petitioner, Clifford Avery, was tried, however, only for the death of Lee Ann Greeley. The trial testimony, more fully detailed in State v. Avery, 126 N.H. 208, 490 A.2d 1350 (1985), indicates that the following facts could be found. In December 1973, the petitioner informed a group of acquaintances that he had $50,000 hidden on a nearby farm, which he had received from a bank robbery. The petitioner asked Gary Russell to help him retrieve the money, and offered to pay Russell $1,000. Prior to leaving, the two men stopped at Russell's mother's house to get a shotgun and ammunition. Later that night the petitioner returned alone, in Gary Russell's car. The petitioner told Wendell Russell, Gary's brother, Mike Davis and Lee Ann Greeley, Gary's girl friend, that Gary Russell was drunk, passed out on a couch nearby. The petitioner agreed to take Lee Ann Greeley to Gary Russell, but refused to let the others come. Lee Ann Greeley was never again seen alive.

During the course of the trial, Mike Davis and Wendell Russell testified that Lee Ann Greeley and Gary Russell were last seen with the petitioner. Furthermore, there was testimony by Arnold Gero, the petitioner's brother-in-law, that the petitioner had admitted to killing Russell and had even shown Gero, on different occasions, where the bodies were located.

In 1974 the petitioner moved from New Hampshire to Arkansas, where he stayed at the house of David Rollans. Rollans testified that the petitioner had told him he was in trouble, because he had killed two people back in New Hampshire. On another occasion, the petitioner told Rollans, "It's all her fault; if it hadn't been for her nothing wouldn't ever have happened; I fixed her. I threw her in the goddam river."

Lee Ann Greeley's and Gary Russell's bodies were later found in May 1974. Gary Russell's body was 130 feet from the place the petitioner had shown Arnold Gero, and Lee Ann Greeley's body was recovered from the Merrimack River. Both had been killed by a shotgun. On May 29, 1974, when the petitioner was arrested, he told the police, "Well, I'm glad its finally over."

The petitioner claims that during his trial he was taking medication prescribed by a county jail physician. The petitioner testified that, as a result of the medication, he suffered hallucinations, confusion and loss of sleep. The petitioner's trial attorney was aware that the medication was being taken, but testified that the petitioner appeared to be competent to stand trial.

Beyond the above mentioned facts, a lengthy procedural history underlies this appeal. After petitioner's murder conviction in 1975, petitioner filed a pro se motion to vacate his sentence on the ground that he had not been competent to stand trial. Petitioner claimed that the drugs he was administered during the trial caused his incompetence. The Trial Court (Loughlin, J.) denied the motion on January 6, 1976.

The petitioner then appealed to this court. Because allegations contained in the motion created a possible conflict of interest between the petitioner and his trial counsel, new counsel was appointed to pursue petitioner's appeal. Petitioner's new counsel then filed an appearance with this court on May 3, 1976. The appeal was held in abeyance pending the resolution of various post-trial motions which petitioner had filed in the superior court, including a renewed motion to vacate the judgment due to incompetence. A hearing to reconsider the issue of competency to stand trial, however, never took place. One month before petitioner's brief on direct appeal was due, petitioner fired his appellate counsel on June 23, 1977. Since the petitioner did not file a brief, however, this court dismissed his appeal on August 16, 1977.

In November, 1981, petitioner filed pro se a petition for habeas corpus in the United States District Court for the District of New Hampshire, challenging his conviction, inter alia, on the ground that he had been incompetent to stand trial. The district court dismissed the petition on all grounds, without prejudice, for failure to exhaust State remedies. This court, at the request of the petitioner, then appointed a second appellate counsel, who filed a motion for late appeal on January 11, 1983. After the subsequent denial of the motion by this court, the petitioner returned to the United States District Court, which held that ineffective assistance of counsel caused the dismissal of petitioner's first appeal to this court. The district court ordered that a writ of habeas corpus would be granted unless this court granted petitioner another appeal. This court accepted the petitioner's appeal on March 29, 1984.

Petitioner's appellate counsel, pursuant to the federal writ of habeas corpus and order of this court, filed a brief with this court on June 8, 1984. Because petitioner disagreed with counsel on which issues should be raised in the direct appeal, the petitioner was granted an additional two months in which to file his pro se supplemental brief covering issues he felt important to his appeal. The petitioner, however, failed to file a brief.

While his direct appeal was pending, petitioner filed with this court a motion to remand the case on the issue of his competency to stand trial. The motion was denied on February 12, 1985. On March 7, 1985, we affirmed petitioner's conviction. State v. Avery, 126 N.H. 208, 490 A.2d 1350 (1985). Petitioner's appellate counsel filed a motion for reconsideration, which was denied.

Pending consideration of his direct appeal, on January 21, 1985, the petitioner also filed in the superior court a pro se motion for a new trial and a petition for writ of habeas corpus. In a fifty-four page order, the Superior Court (Murphy, J.) denied petitioner's twenty-eight requests for relief. From this decision the petitioner appeals, raising four issues: first, whether the trial court erred in ruling that the petitioner waived the issue of competency to stand trial by not raising it in his direct appeal to this court; second, whether the trial court erred in failing to consider petitioner's incompetency claim within the context of his claims of ineffective assistance of counsel; third, whether he was denied effective assistance of counsel, thereby requiring a new trial, when trial counsel failed to preserve for appeal the issue of his right to confrontation when a State's witness invoked the fifth amendment on cross-examination; and fourth, whether the trial court erred in failing to apply the totality-of-the-evidence standard of review to petitioner's claims of ineffective assistance of trial counsel.

The first two issues of this case center around the petitioner's claim that he was not competent to stand trial in 1975. We hold, however, that the petitioner is procedurally barred from raising the issue of his incompetency in a habeas corpus proceeding because of his failure to raise the issue on his direct appeal to this court in 1984.

New Hampshire has adopted the common law rule that habeas corpus is not a substitute for an appeal. Springer v. Hungerford, 100 N.H. 503, 505, 130 A.2d 538, 539 (1957). Although this court has recognized that habeas corpus proceedings may be used to consider constitutional claims challenging jurisdiction after the time for appeal has expired, Bonser v. Courtney, 124 N.H. 796, 807-08, 481 A.2d 524, 530 (1984), we have previously held that procedural defaults may preclude later collateral review. In Roy v. Perrin, when the defendant unjustifiably remained silent for four years prior to raising an objection to his sentencing procedure, he was not permitted to raise the issue in a habeas corpus proceeding. 122 N.H. 88, 100, 441 A.2d 1151, 1159 (1982). Similarly, in Martineau v. Perrin, 119 N.H. 529, 531-32, 404 A.2d 1100, 1102 (1979), no objections or exceptions were taken to a jury instruction, and this court found that the issue was not preserved for appellate review in a habeas corpus proceeding. Furthermore, the United States Supreme Court has recognized the validity of procedural waiver as a bar to relief under federal writs of habeas corpus. Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977).

The petitioner in this case had actual knowledge of the competency issue and raised it before the trial court shortly after his conviction. He had raised it in a pro se, post-trial motion before the superior court in December of 1975. In 1976 he was provided an opportunity to pursue a motion to have the superior court reconsider his motion to vacate judgment. He again presented the issue in a pro se writ of habeas corpus before the federal district court in November of 1981. Furthermore, the petitioner was provided an opportunity to file a pro se supplemental brief before this court in his 1984 appeal, at which time the issue of the denial of his motion to set aside on the grounds of incompetency would have properly been before this court for review. The petitioner, however, never filed the supplemental brief....